1. ' The appellants herein filed Rent Case No,2202/76 before the Senior Civil Judge/Controller, Karachi for ejectment of the respondents herein from the rented premises bearing No,B-4/3/A, Serai Quarters, Karachi on the ground that they had made default in payment of rent from Jan.1969 onwards. The respondents resisted the ejectment application contending that no default in payment of rent was committed. They took the plea that the appellants/landlords had filed a Rent Case No,3060/68 on the ground of default in payment of rent from April, 1966 and this rent case was filed during the pendency of the earlier rent case in which order for deposit of tentative rent was passed on 8-10-1977 and therefore the second case for ejectment on the ground of default in payment of rent was not maintainable. The learned Controller, who then was the XIIth Senior Civil Judge, Karachi dismissed the Rent Case No,2202/76 by the impugned order dated 10-5-1984 holding the view that since an earlier rent case- filed on "the same ground of default" was pending and a tentative rent order was passed thereunder for deposit of rent for the period from April, 1966 to 8-10-1977, the appellants/landlords' remedy, if at all any, lay in making an application u/s 16(2) of the Ordinance, 1979 for striking off the defence of the tenants/opponents.
2. ' The learned counsel for the appellants has urged that pendency of the earlier Rent Case No,3060/68 did not stand in the way of the landlords/appellants in filing another rent case on the ground of default in payment of rent for the period subsequent to the filing of the earlier rent case and the view adopted by the learned Controller is not sustainable under law. He has placed reliance on the cases Mst.Abbassi Begum v. Mst.Ghulam Fatima 1981 SC M ft 752; Syed Azhar Imam Rizvi v. Mst.Salma Khatoon 1985 SCMR 24; and Mrs.Hameeda Habib Patel v. Aisha Islam 1986 MLD 2023. He has further urged that there is considerable evidence on record that the respondents had committed default in payment of rent for the period subsequent to the filing of Rent Case No,3060/68 and the learned Controller should, have passed the order of ejectment of the respondents.
3. ' Notice of the appeal to the respondents could not be served directly and it was served by substituted service. Notice of this date of hearing was sent to them by post on their respective addresses on the record. They have not made appearance.
4. ' Rent Case No,3060/68 was filed in Dec.1968 on the ground of default in payment of rent from April, 1966 and it remained pending till after the present Rent Case No,2202/76 was filed on the ground of non-payment of rent from Jan.1969. Evidently, both the rent cases pertained to different period of alleged default in payment of rent. Tentative rent order for deposit of arrears' of rent in the earlier Case No,3060/68 was passed on 8-10-19771.e. After the filing of the present Rent Case No,2202/76.
5. In the circumstances, the Rent Case No,2202/76 on the basis of default in payment df rent from January, 1969 could be maintained d'uring the pendency of the earlier Case No,3060/68 and this view is supported by the authorities referred to above and the view adopted by the learned Controller that the second rent case was not maintainable is not sustainable.
6. ' The second issue for determination arising in the second Rent Case No,2202/76 was that of default in payment of Rent. It was not duly considered by the learned Controller. The learned counsel for the appellants has urged that this Court may go into the facts of the case and record finding on the question of default and he has made, reference to the provisions of Rule of Order 41 -of Code of Civil Procedure. Of course, the parties had adduced evidence of the question of default in payment of rent, but the finding on this issue should have been recorded by the learned Controller. It would be worthwhile to remand the case so that finding on this:issue should be given by the Controller.
7. ' For the reasons recorded above, the appeal is allowed to the extent that the finding of ,the learned Controller that the second Rent Case No,2202/76 could not be maintained' during the pendency of the earlier Rent Case No,3060/68 is set aside and it is held that the second Rent Case No,2202/76 could be maintained in the circumstances of the case as pointed out above. Consequent thereto, the case is remanded to the Controller to record findings on the issue of default in payment of rent without recording any further c evidence and this shall be done within three months. The parties are left to bear their own costs.